UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4438

RANDY CHRISTMAS, a/k/a Dough,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

Charles H. Haden II, Chief District Judge.

(CR-95-198)

Submitted: March 31, 1998

Decided: April 21, 1998

Before MURNAGHAN and MOTZ, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Anne E. Shaffer, Charleston, West Virginia, for Appellant. Rebecca

A. Betts, United States Attorney, Monica K. Schwartz, Assistant

United States Attorney, Charleston, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Randy Christmas pled guilty to one count of aiding and abetting

the distribution of crack cocaine, see 21 U.S.C. § 841(a)(1) (1994), 18

U.S.C. § 2 (1994), and was sentenced to 360 months imprisonment.

He appeals his sentence, contending that the district court clearly

erred in finding that he attempted to obstruct justice by threatening or

intimidating a witness who had provided information about him, see

USSG § 3C1.1,* and in denying him an adjustment for acceptance of

responsibility. See USSG § 3E1.1. We affirm.

While he was awaiting sentencing, Christmas was confined at the

South Central Regional Jail. A fellow conspirator, Jerry Lee Adkins,

was also confined there. Adkins was known to be cooperating with

the investigation of the drug operation in which Christmas had been

involved. As a result, the correctional officers had instructions to keep

him and Christmas apart. On March 6, 1997, the two were inadvertently brought together in a hallway while Adkins was going to the

visitation room and Christmas, who is six feet, eleven inches tall and

weighs over 200 pounds, was on his way outside for recreation. This

encounter was the basis for the probation officer's recommendation

of an adjustment for obstruction of justice. He reported that Christmas

"stomped his feet as if to charge Adkins. . . .[and] made a statement

to the effect that he was not going to do life and when he got out, he

would get his hands on Adkins." Christmas objected to the recommendation.

The incident was the subject of conflicting testimony at Christmas'

sentencing hearing. Adkins testified about the incident and said he felt

threatened, even after he and Christmas were separated because

Christmas and his friends spread rumors through the jail that Adkins'

family was in danger. Adkins also said he was menaced by a friend

of Christmas a few days later. After that, he asked to be put in protective custody where he remained for several months.

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*U.S. Sentencing Guidelines Manual (1995).

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The two correctional officers who were present at the footstomping incident also testified. Despite giving a contrary statement

right after the incident, Officer Brookover testified at sentencing that

she was unaware of any threat being made. Officer Leonard said he

did not hear a threat but that Adkins looked like he had seen a ghost.

Leonard said he thought Adkins baited Christmas by looking at him

after being separated from him again, and that he encouraged Christmas to work off his feelings by yelling at Adkins. He acknowledged

that Christmas lost his temper and that he would have felt threatened

in Adkins' place. Drug Task Force Detective Harper testified that he

interviewed Adkins and the two correctional officers soon after the

incident and that all agreed that Christmas had threatened Adkins.

The court also heard from an inmate who had been beaten by Christmas in an unrelated incident.

After considering all the evidence, the district court found that

Christmas had in fact intimidated Adkins by making direct and indirect threats to him. See USSG § 3C1.1, comment. (n.3(a)). In support

of its finding, the court noted that Adkins was known to be cooperating and was thus susceptible to intimidation, and that Christmas had

the physical capacity to put others in fear and had shown a willingness to act against others.

We review the district court's factfinding for clear error. See

United States v. Ramey, 24 F.3d 602, 609 (4th Cir. 1994). Christmas

argues on appeal that the district court misunderstood the Adkins incident. He claims that Adkins was frightened by unexpectedly finding

himself in close proximity to Christmas--something for which Christmas was not responsible--rather than by Christmas' actions. However, the record reveals that the court based the adjustment on

Christmas' "actions or threats." Adkins testified that he continued to

be afraid even after Christmas was separated from him and had himself placed in protective custody. On these facts, we find that the district court did not clearly err in making the adjustment.

Christmas also contends that the district court clearly erred in denying him an adjustment for acceptance of responsibility. The adjustment is not appropriate when a defendant has received an adjustment

for obstruction of justice except in extraordinary cases. See USSG

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§ 3E1.1, comment. (n.4). Christmas has not shown that his is such an

extraordinary case.

The sentence is therefore affirmed. We dispense with oral argument because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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